TUESDAY 26 OCTOBER 1999

MR JOHN HOWARD, MR ROGER BIBBINGS AND MR MIKE TOTTERDELL

  80. Do you think that workplace safety representatives should have powers to stop dangerous practices?
  (Mr Totterdell) We feel that there is sufficient room within the existing management of health and safety at work regulations for all employees to take appropriate action, should the circumstances warrant that. The concern we would have is that it might appear to dilute the primary responsibility of line management, there could well be unscrupulous line managers who would rely, as a long-stop, if I can use the cricketing metaphor, on the fact that their safety representatives have got this power, not to do anything, in the hope that the safety representatives would pick the matter up. So it is a delicate issue, but we think, by and large, that the existing management of health and safety at work regulations could be developed in a more proactive way, to enable action to be taken by anyone who wishes to, should their health and safety be put at risk.

  81. So you feel that there is a danger that the responsibility for improving health and safety would be put on not the managers but that health and safety representative?
  (Mr Totterdell) There is always that possibility, unfortunately; it would dilute managers' responsibility, and I do not think that would be a good idea.

  82. Do you think that the HSE give a high enough priority to occupational health, or are you more concerned with pure accidents?
  (Mr Totterdell) In a word, no. Wearing another hat, I represent the engineering construction industry on one of the Health and Safety Commission's advisory committees, the Construction Industry Advisory Committee, and CONIAC debated this issue quite recently, and I think everyone around the table put up their hand and said, "Health is the Cinderella part of health and safety." The problem being the time lag; the example I think of, someone working on a scaffold, three metres in the air, if there is no edge protection on that scaffold it is quite clear there is an immediate risk, but if that scaffold is perfectly well guarded but the individual happens to be applying an adhesive with isocyanates in it, because the occupational asthma that that might cause might not develop for another 20 years, the perception is not that there is a similar problem. And the conclusion we came to was that we really need a national occupational health service, or if that is outside the possible achievement then at least industry-based occupational health schemes, rather like some of the European countries have, I have in mind Germany and France, for example.
  (Mr Bibbings) If I could add to that, Chairman; the difference between safety and health, as my colleague has said, is that safety issues are, by and large, more visible than health issues. If we want companies to manage occupational health then it is important that they try to measure it, because we believe that what gets measured gets managed. And we believe that HSE should give more advice to business on how to set realistic targets for improvement in the area of occupational health, it is harder perhaps than with safety. But it is necessary to bring some quantification into this area and help companies identify targets for improvement, based on risk assessment, so that they can judge whether or not they are making progress towards improving the working environment and reducing harm; and, indeed, they will need help with that. And one of the suggestions which we put in our evidence to you is that, within the reorganisation of the Health Service, and specifically the role of primary care groups, consideration should be given to developing an occupational health resource within primary care groups, particularly to help smaller businesses.

  83. RoSPA have got a campaign to try to reduce occupational road risk; what do you think the role of the HSE could be, to help in that?
  (Mr Howard) May I pick up on that, Chairman. Yes, we are concerned about the imbalance between the primary legislation, which is road traffic legislation, and the Health and Safety at Work Act. The trouble is that when a lead is taken under road traffic legislation the duties of the employers are often forgotten, because prosecutions are taken against individuals, and this is a gap, we feel. We would like to see work-related traffic casualties reportable under RIDDOR; we would like to see the HSE publish guidance on the management of occupational road risk. We would like to see inspectors actually reviewing the management of occupational road risk problems, just as they review the management of other aspects of health and safety at work; and we would like to see a liaison between the HSE and the police, to allow HSE inspectors to investigate accidents, deaths, where there is a clear linkage between the accident and the pressures put on the drivers for work purposes.

  84. Which particular areas in that road risk do you feel really should be targeted, is there any particular thing, or is it general; just thinking for the general public to be aware of which ones you are particularly looking at?
  (Mr Howard) We are particularly interested in the overall management of the fact of driving for work, and that spans right through the selection of vehicles, the scheduling and the expectations of companies that they place on people driving for work, and this can be executives as well as people driving lorries, what is it that is required of them. And, of course, the manner in which they use their work vehicles, just like any other piece of machinery, have they had adequate training for it and are the risk levels similar to the controls which are placed on using workplace machinery; and, of course, the answer to that is no. And so we would like to see driver training improved, through provision of training by employers for their staff.
  (Mr Bibbings) If I might add to that, Chairman, although our campaign has been focused on all kinds of road transport for work, as my colleague has said, we are concerned particularly about company car and van drivers, who are an unregulated area of driving. And we are thinking not so much here of vocational drivers, people whose job is driving, who have, in some sense, a tighter degree of control and high qualifications, we are thinking of people who have to drive as part of their work and who, in fact, if they drive significant mileages, experience risk at a level faced by workers in traditionally hazardous industries like construction and agriculture, and so on; that is not widely appreciated. So what we are looking for is for employers to be encouraged and persuaded to manage the risks involved which present themselves not just to their own employees but to other road users as well, to manage those risks in exactly the same way as they manage any other kind of work-related risk. And we believe, although the figures are hard to elicit and more work is needed here, that probably twice as many people are killed at work in this way than are killed in all other notifiable occupational accidents. And we feel that the contribution which the management of risk, in the course of driving for work, could make to improving overall road safety has been severely underestimated by successive administrations.

  85. But are you actually saying that people when they are driving at work are more dangerous, for various reasons, than if they are driving for their own purposes?
  (Mr Bibbings) It is hard to say, but there is some evidence from the Transport Research Laboratory which suggests that company car drivers, for example, have a 40 to 50 per cent higher involvement in accidents than normal drivers. One might have hoped that it would have been the reverse, but, in fact, it seems that there are things about work which increase levels of risk, and some of the underlying issues, we believe, are things like fatigue, thought by many now to be a greater source of impairment in road accidents than alcohol, and also the pressures that are put on people to cover excessive distances in insufficient time.
  (Mr Howard) Not only that, Chairman, if I may add to it, we are concerned about the way in which cars are being turned into mobile offices. You can hardly imagine an employer providing a mobile `phone to somebody when they are using a guillotine in the workplace, but they quite happily provide them to them when they are driving their cars and expect them to take calls.

  86. In your written submission, you suggest some stringent and novel penalties, for example, debarring offending people from being directors, and compulsory retraining of senior managers if the companies have offended. How realistic and practical do you think this is; is this going to need legislation, or do you think there is a way of enforcing this now?
  (Mr Bibbings) None of the suggestions which we put in our written evidence, Chairman, we believe, would actually require additional legislation, there are already fairly substantial powers in the health and safety law, and, indeed, in company law, in this area. What we are arguing for is a more creative approach to sentencing; we are concerned, in general, about the low level of fines, certainly for summary cases, and certainly we are very concerned about variations in levels of fine, for example, or apparent variations, between lay magistracy and stipendiary magistrates and between urban and rural magistrates, for example. But, turning to the main thrust of your question, which was about the approach to sentencing, we feel that on occasions it would be much more beneficial if suspended sentences were given and the courts required those found guilty of offences, particularly directors, for example, to be retrained, to put in place restructuring and the redevelopment of health and safety management in their organisations, and for reports to be produced to the court, within specific timescales, to say that remedial action had been taken. We feel that, often, in the case of small companies, where a large fine might put them out of business, for example, and lead to people being laid off, this sort of more creative approach to retraining people might be more effective. But that does not mean to say that we do not believe that significant penalties, including custodial sentences, should not be imposed on people who have shown wilful disregard for the safety and health of their employees and others.

  87. What are your views on current policies, from HSE and, indeed, the courts, on this sort of approach?
  (Mr Bibbings) As I have already indicated, for many cases that are taken in magistrates courts, particularly where magistrates only come across health and safety offences very infrequently, the level of penalty imposed may not actually really reflect a true understanding of the gravity of the offence, or, indeed, the need to give a clear signal, an example, to other employers. So we do have a very serious concern there, and we feel that the Health and Safety Commission, for example, might actually do well to publish some sort of comparative review of sentencing experience, perhaps going back a few years, and also perhaps to help bench-mark the kinds of levels of sentence which can be expected for certain offences. Certainly, in recent time, the level of fines for cases taken in the higher courts has increased very substantially, and we welcome that because it sends a very clear signal to the rest of business that the sorts of offences that have been involved are not to be tolerated. But there are wide variations here, and very often people who have been injured, families, and so on, and others, express a good deal of dissatisfaction about the level of fines and penalties imposed.
  (Mr Totterdell) A couple of years ago, the HSE entered into a protocol for liaison with the Association of Chief Police Officers, ACPO, and the Crown Prosecution Service, where there would be joint action following fatal accidents at work. The protocol has been in existence for some time; it would be interesting to see some effects of that agreement.

  88. Are you satisfied with the current division of responsibilities between the HSE and local authorities, as far as health and safety is concerned?
  (Mr Totterdell) There have been suggestions, dealing with this problem of getting the message to the very small firms, that there might be an advantage in very small companies, very small firms, coming entirely within the jurisdiction of local authorities. If I can make a personal comment, as someone who spent all my working career in the construction industry, I would be concerned that, there are many, many small employers in the construction industry, it would be to the disadvantage of the industry if small companies, many of which spend quite a lot of their time working for larger companies anyway, were covered by a different enforcement regime from the larger companies; it all ought to be covered by the HSE. The perception is, it is about right at the moment; there is HELA, the liaison committee that exists between local authorities and the HSE where there are interface issues, and the perception is that that committee works fairly effectively.

  89. So you are happy that local authorities are applying themselves well to the Health and Safety Act, within their own remit, and that they are able to cope. Can I ask you a slightly mischievous question; who do you think is coping the best, HSE or the local authorities, in any one area?
  (Mr Totterdell) Having worked in an industry which has been all my career covered entirely by HSE, I have to put my hand up and say I do not have much personal experience of local authority enforcement.

  90. Not even on planning regulations?
  (Mr Totterdell) But the perception is that HSE are much more professional.

  91. That brings me on to my next question, the final one, and that has to do with consistency, both with approach and outcome across the nation; now do RoSPA have any evidence that, indeed, there are problems here, and that in some regions matters are dealt with more effectively and efficiently than they are in others, and what would you put it down to, if you feel that there are discrepancies?
  (Mr Bibbings) As I said earlier, Chairman, there are many allegations about variations in enforcement practice, mainly anecdotal, shall we say, of alleged variations in enforcement, across the country, both in the case of HSE and local authorities, and HELA exists to try to deal with those sorts of issues and create common approaches. And here, of course, it must be remembered that HSE and local authorities, by and large, enforce in quite different sorts of areas. HSE, generally speaking, enforce in relation to sometimes very significant and quite complex risks; local authorities, the bulk of their enforcement is perhaps dealing with perhaps more routine aspects of health and safety in allegedly lower-risk premises. One of the initiatives which we have strongly supported and been encouraged by is the development of lead authority schemes in the retail industry, for example, where a local authority takes the lead for a multi-branch, nationwide organisation and develops a company-wide approach in liaison with colleagues and other local authorities; that sort of approach seems to work very well. But if there are allegations about variations in enforcement practice, and so on, then it is important that these things are not swept under the carpet, that they are exposed and explained, but we feel that, on the whole, the case about variation is largely exaggerated.

  92. The HSE was set up in 1974, at a time when the labour market was structured in a very different way from today's labour market. Can you see any ways in which the composition of the Commission could, or should, be changed to reflect today's way of working?
  (Mr Bibbings) I will start this one, if I may, Chairman, and my colleagues may have other points. Yes, it is true that the Commission came out of the experience of the Robens Committee, and it drew heavily on the positive experiences in health and safety in the nationalised industries, for example, and that is where the foundation for social partnership in the Commission perhaps was born. But there have been many changes since, and many other players have come into what we call the health and safety system, and we are not sure that we have the precise answer to it but we feel that the Commission does need to look at how it refreshes and regenerates its membership to reflect those changes, both in the labour market and the other players in the system. The composition of the Commission is, to a certain degree, fixed by primary legislation, by the duties on the Secretary of State to consult with bodies representing employers and employees. But there could be considerable scope, we think, for looking at the composition, at least initially, of advisory committees to the Commission, to see whether some of these wider interest groups can be included, and we think particularly that health and safety professionals, as a very important group within health and safety, do have a separate and independent voice from either employers or employees, and they should be allowed to play a representative role in that way. The difficulty is that if people are going to play a properly representative role and not just be there as individuals they do need to, in some sense, be supported by a representative structure, to be properly briefed, to be properly accountable to the constituencies from which they come, and it poses a lot of practical difficulties. So we do not have precise answers, but we do think that this is an issue which the Commission and, indeed, the Secretary of State, and so on, need to continue to work at.

  93. Do you have any evidence, for instance, that there are any accidents that are occurring, say, at home, with homeworkers, that the Health and Safety Commission is perhaps not as aware of as it should be, because that particular group might be underrepresented on the Commission?
  (Mr Howard) We do not have evidence, no. It is an interesting point for investigation about whether the representation of employers is as wide as it might be. The NHS now employs thousands of people and comes under the scope of the Health and Safety at Work Act, and with the proliferation of Trusts and other such bodies it is interesting to see how that representation of employment is represented on the HSE, and it would be interesting to look at not only homeworkers and the self-employed but also the service industries as well.

  94. Could you tell me, given what your evidence is saying, in terms of gathering up marine, fire and product safety, how the Health and Safety Executive could possibly cope with taking on that added responsibility, given the obvious difficulty that they already have in terms of railway safety?
  (Mr Howard) I do not think that we would envisage them taking on the responsibilities without a corresponding transfer of funding from the areas of Government which currently have responsibility; if one takes fire, for example, there would be a necessary transfer from the Home Office to the Health and Safety Executive of the financing which covers those responsibilities at the moment.

  95. And personnel?
  (Mr Howard) And personnel, yes.

  96. But do you not think it is a quick, clear demonstration that they have not been focused as they might have, in terms of railway safety, that for them to then embrace other aspects, and in your submission you suggest that they are the best agency to take this on, given their competence, it is not my experience that they have great competence in anything that they do?
  (Mr Howard) I think that there is, without doubt, a centre of expertise and understanding concentrated within the Health and Safety Executive which could be strengthened by having other aspects of safety responsibilities added to it, and when those responsibilities are disparate throughout Government there are not the economies of scale which you get by actually having them concentrated; and we think that it may take some time for them to be integrated. And, I think, if you look at the HSE, there is no doubt that there is a continuing integration process taking place, but that does not mean that one should not strive for a goal in the future whereby you do have a centre of excellence based on risk.

  97. But would it not be the case that they would just compartmentalise their business and that there would not be that exchange, and even if there were to be a focusing that that could be done with an arrangement without there being the amalgamation?
  (Mr Howard) If I can just defer to my colleague, who is hot on this.
  (Mr Bibbings) I think, if we can look at historical experience, Chairman, although history does not always repeat itself, but the taking of offshore safety within the Health and Safety Executive/Commission structure, following the Cullen Inquiry, did mark an opportunity for that regime to benefit from the hazard knowledge and expertise and approaches that had been developed particularly in the major hazards field. So, for example, I remember, because at the time I was personally involved in this, that the Burgoyne Inquiry, which preceded Cullen by some years, did not take that view. Cullen actually, subsequently, showed that offshore safety had been weak because of this lack of integration and cross-fertilisation. Gas safety is another area, perhaps different. And, to the extent that there are areas of work-related risk which are outside the scope of the Health and Safety Commission structure and which cannot benefit from common approaches and from the resources and expertise which is within HSE, which we do not see as compartmentalised, our understanding is that there is a good deal of interchange there, to the extent that there are such zones of safety, work-related, still outside HSE, the safety of UK Plc is the poorer, we think.
  (Mr Totterdell) Can I add another point, Chairman. Mr Brake made the point that the Health and Safety Commission was set up after the 1974 Health and Safety at Work Act came into being; things have moved on significantly, public attitudes, and so on, and public perception of risk and safety. And maybe there is a need for new primary legislation removing the "at Work" from the Health and Safety at Work Act, so that we look at health and safety across all our activities, as human beings, and not just within compartments of whether we are at work or whether we are driving a car.

  98. Yes, but, surely, in these circumstances, you open up to all sorts of dangers, where there is not the attention being paid to any given detail of their work? If you open up to the whole gamut of health and safety, is there not more of an argument—
  (Mr Totterdell) Within RoSPA, we try to do that, we have water safety, we have home safety, we have education safety; we are not just covering safety at work.

  99. Yes, but, with the greatest respect to your organisation, and I have a lot of respect for it, it is based mainly on the safety element, it is not based on the health element, and if you are suggesting that there is a Health and Safety Executive that then grows and its tentacles go everywhere, would there not be more of a case to suggest that there should be the hiving off of health and having it as a stand-alone, to look at it right across the whole gamut of health? Because you do not concentrate any of your time on health, so why do you make this proposal?
  (Mr Bibbings) If I might say, Chairman, one of the very strong points which we have made, in response to the consultation of the Health and Safety Commission, particularly on its ten-year strategy for occupational health, is that safety and health should not be separated, because, in practice, within organisations, the structures, the policies, the arrangements, for preventing work-related harm from accidents are exactly the same approaches which are required to prevent harm to health from exposure to hazards as to health, for example. It is very important that this is made a management responsibility and that management systems and competence are put in place within organisations to address these issues in a single framework. If I might add, on the question of compartmentalisation, I think the problem at the moment is that we have compartmentalisation which needs to be broken down. For example, RoSPA, as my colleague has said, covers water safety; we have just issued a report on safety in inland drownings and inland waters. Now last year there were about 360 drownings in inland waters, most of which, we believe, are waters connected with undertakings; there were only eight reports, under RIDDOR, of drownings of members of the public. And we collect these statistics, under a grant, an arrangement with the Home Office, so we have a very good understanding of the extent of drownings both of employees and members of the public, these are mainly members of the public. But the problem with water safety is that it is dealt with by a wide range of Government Departments, and we feel very strongly, because most of these drownings in inland waters take place in waters which are part of undertakings, that the HSE should be asked to take a lead to investigate this issue and create a much more co-ordinated approach to promoting water safety amongst the various Government Departments and agencies involved.